THIRD SECTION

Application no. 60281/11 E . S . against Romania and Bulgaria lodged on 29 August 2011

STATEMENT OF FACTS

1. The applicant, E . S . , is a Romanian national, who was born in 1981 and lives in Hotare , Vâlcea County.

A. The circumstances of the case

2. The facts of the case, as submitted by the applicant, may be summarised as follows.

3. On 12 November 2004 the applicant gave birth to a girl, in Spain. The father was R.E.N., a Bulgarian national. In 2008 the couple broke up and, with the father ’ s consent, the applicant returned to live in Romania with her daughter.

4. On 29 July 2008 the applicant, represented by counsel, lodged a request for custody of the child with the Râmnicu Vâlcea District Court (see section no. 1 below).

5. On 4 November 2008 the paternal grandparents came for a visit, took the child without her mother ’ s knowledge or consent and transported her illegally to Bulgaria where she currently resides. From the applicant ’ s recount it appears that the paternal grandparents refuse to allow her any contact with the child.

1. Custody proceedings before the Romanian courts

6. On 30 January 2009 the District Court awarded custody of the child to the applicant. The decision was nevertheless quashed by the Vâlcea County Court, as R.E.N. had not been legally summonsed to appear.

7. The District Court re-examined the case and in a decision of 11 November 2010 awarded again the custody rights to the applicant. The court also noted that R.E.N. has started similar proceedings in Bulgaria, on 22 December 2008. As he had lodged his request with the Bulgarian courts after the applicant ’ s own request with the Romanian courts, the Râmnicu Vâlcea District Court considered that it had jurisdiction to deal with the matter. On the merits, the court considered that while the material conditions offered by the father and paternal grandparents were superior to the ones available in the applicant ’ s home, the father due to his criminal past and the paternal grandparents because of the manner in which they had kidnapped the child, did not offer satisfactory moral conditions for the child ’ s upbringing.

8. The father appealed, and on 21 October 2011 the Vâlcea County Court granted him custody of the child, on the ground that she was already integrated in her new environment in Bulgaria and did not speak Romanian.

9. The applicant appealed on points of law. The PiteÅŸti Court of Appeal re ‑ examined the facts and decided that the County Court made an erroneous interpretation of the situation and disregarded the child ’ s best interest. It therefore quashed the County Court ’ s decision and upheld the decision rendered by the District Court. The Court of Appeal gave its final ruling in the case on 9 January 2012.

2. Request for interim measures ( ordonanţă preşedinţială )

10. On 8 July 2011 the applicant lodged a request for interim measures seeking the temporary custody of her daughter, pending the outcome of the custody proceedings. On 26 July 2011 her request was dismissed by the Râmnicu Vâlcea District Court, on the ground that as at that time the child was already living with the paternal grandparents in Bulgaria for over three years, it would not be in her interest to change temporarily her environment and be placed with her mother, until the end of the custody proceedings.

3. Enforcement proceedings in Bulgaria

11. The applicant sought recognition of the custody decision of 30 January 2009 with the Bulgarian courts and then initiated enforcement proceedings through a Bulgarian enforcement officer.

12. On 9 February and 16 March 2011 the enforcement officer tried unsuccessfully to return the child to Romania. On each occasion, the paternal grandparents, informed of the enforcement proceedings, had temporarily withdrawn the child from the kindergarten and left their home by the time the officer arrived at their place.

13. On 16 March 2011 the applicant lodged a criminal complaint against R.E.N. with the Pazardzhik Regional Prosecutor ’ s Office for non ‑ compliance with a court order.

14. It appears that the applicant initiated a new set of proceedings for the recognition of the decisions rendered on 11 November 2010 and 9 January 2012. These proceedings are still pending with the Bulgarian courts.

4. Proceedings under international Conventions

15. Following a telephone conversation between the applicant and a civil servant from the Romanian Ministry of Justice, the applicant was invited to lodge a request for the return of the child under the Hague Convention on the Civil Aspects of International Child Abduction of 25 October 1980 (“the Hague Convention”). Therefore, on 1 July 2011 the applicant made a request for the return of the child under the Hague Convention .

16. On 17 August 2011 the request was transmitted by the Romanian Ministry of Justice, the Central Authority for the purpose of that Convention to the Bulgarian Ministry of Justice, the Central Authority for the purpose of that Convention.

17. On 24 August 2011 the Bulgarian Ministry of Justice informed the applicant that the request had been denied as the Hague Convention was not applicable between Romania and Bulgaria.

18. On 26 October 2011 the Romanian Ministry of Justice also informed the applicant and her counsel about the outcome of the proceedings before the Bulgarian Central Authority. They advised the applicant to apply directly to the Bulgarian courts (according to the provision of Article 29 of the Hague Convention), or to the Bulgarian Ministry of Justice either directly or through the offices of the Romanian Ministry of Justice, under the provisions of the European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children (“the Luxembourg Convention”).

5. Custody proceedings before the Bulgarian courts

19. In appears that the custody proceedings initiated by R.E.N. are currently pending before the Padzardhik District Court.

B. Relevant domestic and international law

20. The relevant provisions o f the Bulgarian law concerning enforcement of a parent ’ s contact rights with the child are described in M.P. and Others v. Bulgaria ( no. 22457/08 , §§ 94 and 95, 15 November 2011).

21. The relevant articles of the Hague Convention and the interpretation given to the concept of “the child ’ s best interest” are described in Neulinger and Shuruk v. Switzerland ([GC], no. 41615/07, §§ 57-68, ECHR 2010) .

22. In addition to the Articles described in Neulinger , the following Articles of the Hague Convention were quoted in the domestic proceedings:

Article 29

“This Convention shall not preclude any person, institution or body who claims that there has been a breach of custody or access rights within the meaning of Article 3 or 21 from applying directly to the judicial or administrative authorities of a Contracting State, whether or not under the provisions of this Convention.”

Article 38 § 4

“The accession will have effect only as regards the relations between the acceding State and such Contracting States as will have declared their acceptance of the accession. Such a declaration will also have to be made by any Member State ratifying, accepting or approving the Convention after an accession. Such declaration shall be deposited at the Ministry of Foreign Affairs of the Kingdom of the Netherlands; this Ministry shall forward, through diplomatic channels, a certified copy to each of the Contracting States.”

23. Romania ratified the Hague Convention on 20 November 1992 and Bulgaria ratified it on 20 May 2003. However, as Romania has not yet accepted Bulgaria ’ s accession, the Convention is not applicable between the two States.

24. The relevant provisions of the Council of Europe ’ s European Convention on Recognition and Enforcement of Decisions concerning Custody of Children and on Restoration of Custody of Children adopted in 1980 in Luxembourg (ETS 105) read as follows:

Article 4

“1. Any person who has obtained in a Contracting State a decision relating to the custody of a child and who wishes to have that decision recognised or enforced in another Contracting State may submit an application for this purpose to the central authority in any Contracting State.

3. The central authority receiving the application, if it is not the central authority in the State addressed, shall send the documents directly and without delay to that central authority.”

Article 5

“1. The central authority in the State addressed shall take or cause to be taken without delay all steps which it considers to be appropriate, if necessary by instituting proceedings before its competent authorities, in order:

a) to discover the whereabouts of the child;

b) to avoid, in particular by any necessary provision ­ al measures, prejudice to the interests of the child or of the applicant;

c) to secure the recognition or enforcement of the decision;

d) to secure the delivery of the child to the applicant where enforcement is granted;

e) to inform the requesting authority of the measures taken and their results. “

Article 13

“1. A request for recognition or enforcement in another Contracting State of a decision relating to custody shall be accompanied by:

a) a document authorising the central authority of the State addressed to act on behalf of the applicant or to designate another representative for that purpose;

b) a copy of the decision which satisfies the necessary conditions of authenticity;

c) in the case of a decision given in the absence of the defendant or his legal representative, a document which establishes that the defendant was duly served with the document which instituted the proceedings or an equivalent document;

d) if applicable, any document which establishes that, in accordance with the law of the State of origin, the decision is enforceable;

e) if possible, a statement indicating the whereabouts or likely whereabouts of the child in the State addressed;

f) proposals as to how the custody of the child should be restored.

2. The documents mentioned above shall, where necessary, be accompanied by a translation according to the provisions laid down in Article 6.”

25. Council Regulation (EC) No. 2201/2003 of 27 November 2003 concerning jurisdiction and the recognition and enforcement of judgments in matrimonial matters and matters of parental responsibility read as follows:

Preamble

“(17) In cases of wrongful removal or retention of a child, the return of the child should be obtained without delay, and to this end the Hague Convention of 25 October 1980 would continue to apply as complemented by the provisions of this Regulat ion, in particular Article 11. ... ”

Article 11

“1. Where a person, institution or other body having rights of custody applies to the competent authorities in a Member State to deliver a judgment on the ba sis of the Hague Convention ... , in order to obtain the return of a child that has been wrongfully removed or retained in a Member State other than the Member State where the child was habitually resident immediately before the wrongful removal or retention, paragraphs 2 to 8 shall apply.

...

3. A court to which an application for return of a child is made as mentioned in paragraph 1 shall act expeditiously in proceedings on the application, using the most expeditious procedures available in national law.

Without prejudice to the first subparagraph, the court shall, except where exceptional circumstances make this impossible, issue its judgment no later than six weeks after the application is lodged.

4. A court cannot refuse to return a child on the basi s of Article 13 (b) of the ... Hague Convention if it is established that adequate arrangements have been made to secure the protection of the child after his or her return.

5. A court cannot refuse to return a child unless the person who requested the return of the child has been given an opportunity to be heard.

6. If a court has issued an order on non-return pursuant to Article 13 of the 1980 Hague Convention, the court must immediately either directly or through its central authority, transmit a copy of the court order on non-return and of the relevant documents, in particular a transcript of the hearings before the court, to the court with jurisdiction or central authority in the Member State where the child was habitually resident immediately before the wrongful removal or retention, as determined by national law. The court shall receive all the mentioned documents within one month of the date of the non-return order.

7. Unless the courts in the Member State where the child was habitually resident immediately before the wrongful removal or retention have already been seized by one of the parties, the court or central authority that receives [a copy of an order on non-return pursuant to Article 13 of the Hague Convention and of the documents relevant to that order] must notify it to the parties and invite them to make submissions to the court, in accordance with national law, within three months of the date of notification so that the court can examine the que stion of custody of the child. ... ”

26. Both Romania and Bulgaria became members of the European Union on 1 January 2007.

27. The relevant provisions of the 1959 Treaty between Bulgaria and Romania on legal assistance in civil, family and criminal matters read as follows:

Article 44

“1. The final court ... decisions rendered in non-pecuniary matters ( de natură nepatrimonială ) of one of the Contracting Party are enforceable on the territory of the other Contracting Party without any additional proceeding, if no court ... of the latter Contracting Party rendered a final decision that constitutes res judicata in the case, or if the latter Contracting Party does not have exclusive jurisdiction in the matter according to the present Treaty. ”

COMPLAINT

28. Relying in substance on Article 8 of the Convention, the applicant complains about the rupture of her family ties with her daughter caused by the lack of prompt reaction from the Romanian and Bulgarian authorities for the return of the child and for enforcement of her custody rights over the child.

QUESTION TO THE PARTIES

Has there been a violation of the applicant ’ s right to respect for her family life, contrary to Article 8 of the Convention, given the time it took the Romanian and Bulgarian authorities to decide on the custody rights over her minor child and to enforce the custody order?

The respondent Governments are invited to send the court decisions rendered by their respective jurisdictions in the actions lodged by the applicant or on her behalf for custody and return of the child. In addition, the Bulgarian Government is invited to transmit all relevant information and documents concerning the enforcement proceedings of the custody orders.